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Allen v. Schultheiss

October 1, 2009

RAE NERO ALLEN, APPELLANT,
v.
WILLIAM J. SCHULTHEISS, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (CAR6746-05) (Hon. Russell F. Canan, Trial Judge).

The opinion of the court was delivered by: Ruiz, Associate Judge

Argued February 7, 2008

Before RUIZ and BLACKBURNE-RIGSBY, Associate Judges, and STEADMAN, Senior Judge.

Appellant filed a complaint to quiet title and for ejectment against appellees, who were in possession of a parcel of real property, claiming that she had a life interest in it pursuant to a deed. The trial judge granted appellees' motion for summary judgment after determining that the deed purporting to grant appellant an interest in the property was void because, as a matter of law, a life estate cannot be held as a tenancy by the entirety.*fn1 We hold that a life estate may be held as a tenancy by the entirety. We reverse the grant of summary judgment and remand the case to the trial court for further proceedings to determine the proper interpretation of the deed on which appellant stakes her claim and its effect on the parties' competing contentions.

I.

Appellant, Rae Nero Allen, is the daughter of Johnson and Allene Nero, both now deceased. While living, the Neros, who were married, issued a deed on March 30, 1982 ("1982 deed"), which was recorded on April 30, 1982, in the Land Records of the District of Columbia. That deed conveyed to appellant an interest in a parcel of real property located at 1225 F Street, N.E., in the District of Columbia, which the Neros owned, as follows:

TO HAVE AND TO HOLD UNTO the said Johnson Nero and Allene Nero, his wife, as tenants by the entirety for the terms of their natural lives, and upon the death of the survivor of them, unto the said Rae R. Nero [appellant] for the term of her natural life as to an undivided two third (2/3rds) interest and unto the said Rae R. Nero in fee simple as to the remaining undivided one third (1/3rd) interest . . . .

(emphasis added). The deed also conveyed the remainder 2/3rds fee simple interest, after appellant's life estate, in six undivided 1/9th interests to appellees Alberta Nero, Lois Thomas, Jimmy Nero, Curtis Nero, Ronald Nero, and Catherine Nero.

Subsequent to the execution and recording of the 1982 deed, Johnson Nero died and was survived by his wife, Allene Nero. On June 19, 1992, Allene Nero recorded a deed ("1992 deed") for the same property that conveyed an undivided 8/9ths interest in fee simple to herself ("the surviving tenant by the entirety -- Allene Nero"), and an undivided 1/9th interest in fee simple to her daughter, Catherine Nero. On September 8, 1994, Allene Nero executed a Last Will and Testament naming her daughter, Lori Thomas, as personal representative. The will devised a 1/3rd interest in the property to appellant and a 1/9th interest to each of appellant's siblings other than Catherine Nero, with each interest in fee simple to be held as tenants in common On November 7, 1998, Allene Nero died. Her estate went into probate and letters of administration were issued to Ms. Thomas, who supervised the probate of the estate. On October 27, 2000, Ms. Thomas and Catherine Nero executed a deed conveying the property to appellees William Schultheiss and Elizabeth Twarog in fee simple ("2000 deed"), who subsequently occupied the property. Before closing on the property, Mr. Schultheiss and Ms. Twarog hired appellee Troese Title Services, Inc. ("Troese Title"), which conducted the title examination of the property. The sale of the property went to settlement, and the purchasers took possession. According to appellees Schultheiss and Twarog, appellant, along with her siblings and Catherine Nero, "collectively received, shared in and distributed among themselves the purchase money paid" for the property.

Appellant issued a written demand to Mr. Schultheiss and Ms. Twarog to vacate the property to allow her to exercise her rights under the 1982 deed, a 1/3 interest in fee simple and a life estate in the other 2/3 of the property. Mr. Schultheiss and Ms. Twarog refused to move out. On August 24, 2005, appellant filed a complaint to quiet title and to eject Mr. Schultheiss and Ms. Twarog from the property, claiming that the 2000 deed conveying the property to them was invalid, because the grantors (Lori Thomas as personal representative of Allene Nero's estate and Catherine Nero) did not own the interest they purported to convey. Appellant argued that when Allene Nero executed the 1992 deed, she held only a life estate with no power to sell, encumber, or transfer the property in fee simple. Because the 1992 deed was a nullity, it did not transfer ownership interests to either Allene Nero (and subsequently, her estate) or to Catherine Nero.

After answering appellant's complaint, Mr. Schultheiss and Ms. Twarog filed a third-party complaint for negligent performance of title examination services against appellee Troese Title. Mr. Schultheiss and Ms. Twarog also asked the court for a declaratory judgment that they are the sole owners of the property, and to quiet title against those granted remainder interests upon the death of appellant (i.e., after the lapse of her claimed life estate) in the 1982 deed, which included appellees Albert Nero, Lois Thomas, Jimmy Nero, Curtis Nero, Ronald Nero, and Catherine Nero. On March 23, 2006, Troese Title filed a motion for partial summary judgment, with respect to the third-party complaint against it. Troese argued that the 2000 deed conveying title to its clients, Mr. Schultheiss and Ms. Twarog, was valid because the 1982 deed had created a tenancy by the entirety between Johnson and Allene Nero in fee simple, rendering void the deed's language purporting to create only a life estate. As a result, argued Troese Title, the claim of title ran through Allene Nero's subsequent transfers after she survived her husband (by deed to Catherine Nero and by will to Lori Thomas as personal representative of her mother's estate), and their deed conveying the property to Mr. Schultheiss and Ms. Twarog. Mr. Schultheiss and Ms. Twarog filed a motion adopting Troese's Title's position. Appellant opposed both motions, and filed the affidavit of an expert D.C. title examiner, whose opinion supported appellant's contention that pursuant to the 1982 deed, she had a life estate in 2/3rds of the property, as well as 1/3rd interest in fee simple.

On October 10, 2006, the Superior Court held a hearing, and, in an oral ruling, granted the motions for summary judgment filed by Troese Title, Mr. Schultheiss and Ms. Twarog.*fn2

The trial court reasoned that because a "tenancy by the entirety is not limited by years and is not an estate for life," the language in the 1982 deed which purported to create a tenancy by the entirety in a life estate (for appellant's parents Johnson and Allene Nero), was "in effect a legal nullity." The trial court interpreted the 1982 deed as conveying the property in fee simple, as tenants by the entirety, to Johnson and Allene Nero, and "upon the death of Johnson Nero his surviving spouse in effect took full legal title to the property to devise as she saw fit." The trial court also concluded, in the alternative, that appellant's claim to ownership of the property was in essence a challenge to Allene Nero's will, based on its understanding that once Allene Nero survived her husband, and had full ownership of the property, it had then passed through her will. As a result, the trial court held, ...


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